Justice Kennedy reminds Trump he is not above the law

Editor's Note:Vikram David Amar is the dean and the Iwan Foundation Professor of Law at the University of Illinois College of Law in Urbana-Champaign, and Akhil Reed Amar is Sterling Professor of Law at the Yale Law School. The opinions expressed in this commentary are solely those of the authors.

(CNN) — In one of this year's most-watched cases, Trump v. Hawaii, Chief Justice John Roberts on Tuesday authored a five-justice opinion upholding the latest version of the Trump administration's so-called travel ban. While Roberts is the court's formal leader, Associate Justice Anthony Kennedy is often its fulcrum -- the proverbial swing justice -- and its conscience.

In the Hawaii case, Kennedy penned a brief and high-minded concurrence, epitomizing his approach to being a good judge and a good leader.

As important as his swing vote was, Kennedy's words in concurrence are also noteworthy. In classic Kennedy fashion, he called for civility and mutual respect in an increasingly polarized country and world.

Why, then, did Justice Kennedy vote to uphold the travel ban, given some of the nasty comments tweeted by President Donald Trump in the run-up to earlier versions of the order? Because there is a difference between what a President (or presidential candidate) offhandedly says, and what a policy adopted by an administration actually does.

The travel ban, in form and effect, does not single out Muslims; indeed, the countries with the largest Muslim populations aren't covered. Although this Supreme Court, including Justice Kennedy, is sometimes criticized for not staying in its institutional lane (e.g., Bush v. Gore), today Kennedy and the majority were properly mindful of the limits on the court's role. Especially in the foreign affairs realm, Justice Kennedy didn't think the court's job includes policing the President's potty mouth.

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